Maintaining a sexual relationship with consent from the inception is not an offence: Supreme Court

Case title: Sheikh Arif vs State of Maharashtra & Ors.

Case no.: Criminal appeal no. 1368 of 2013

Decided on: 30.01.2024

Quorum: Hon’ble Justice Abhay S. Oka, Hon’ble Justice Pankaj Mithal



The current appeal is in the case of rape based on a false promise of marriage. The second respondent filed a complaint against the appellant at the Sadar Police Station in Nagpur. According to the complaint, the appellant and the second respondent first met in 2011. They became acquainted with each other and entered into a relationship. The second respondent alleges that the appellant attempted to maintain a physical relationship with her but she prevented him from doing so. However, by making a false promise of marriage, the appellant engaged in sexual intercourse with her on multiple occasions.

During sexual intercourse, she became pregnant and had an abortion. She then engaged with the appellant. For the second time, she became pregnant. The second respondent then saw photos of the appellant’s engagement ceremony with another woman on his cell phone. The second respondent stated that she was informed the day before the complaint was filed that the appellant had married another girl. The appellant claims that there was a Nikah between him and the second respondent at Dargah. The appellant’s case is that he was unable to produce the original Nikahnama, but the police seized a copy of it.


Whether or not the appellant maintained a relationship based on a false promise of marriage?


According to Section 375 of the IPC, if the victim of the alleged rape is over the age of 18, having a sexual relationship with her consent is not a crime.


The appellant’s learned counsel argued that their long-standing relationship with the second respondent was always consensual. He stated that the appellant married the second respondent on January 20, 2017. He argued that the appellant’s prosecution constitutes an abuse of legal process.


The State’s counter-claim stated that the report of a handwriting expert was requested in order to determine the genuineness of the signatures on the Nikahnama. The learned counsel for the second respondent contended that, even if it is assumed that the second respondent consented to the continuation of a physical relationship, this consent was tainted by fraud and misconception. She contended that, despite the Investigating Officer’s repeated requests for the appellant to produce the original Nikahnama, he failed to do so, and thus an adverse inference must be drawn against him. She urged that, in any case, the issues raised could only be addressed during the trial.


The court cited the case of Anurag Soni, which held that if the victim’s consent is based on a misconception, it is irrelevant because it is not voluntary consent. If it is established that the victim’s consent was obtained as a result of a false promise to marry, there will be no consent, and the offence of rape will be proven.

The court noted that the second respondent was admittedly older than 18 when the relationship began. It also stated that at the time the complaint was filed, the second respondent was 24 years old.

Despite the fact that the second respondent claimed it was a forced relationship, she did not file any complaints until the complaint date. According to the second respondent, the appellant and the second respondent held an engagement ceremony in July 2017. As a result, on the facts of the case, it is impossible to accept that the second respondent maintained a physical relationship with her from 2013 to 2017 based on a false promise to marry.

Now, when it comes to the Nikahnama, it is true that the original could not be produced. However, the seizure panchnama indicates that a carbon copy of the Nikahnama was taken. The police officers present at Nikah recorded the statement of one Burhanuddin. He confirmed the fact that the appellant and the second respondent performed Nikah together.

The doctor who treated the appellant and second respondent claimed that the second respondent informed her that the appellant was her husband.

Finally, the court found that the appellant’s physical relationship with the second respondent was consensual. In fact, she attended the engagement ceremony without protest. However, she denies that she married the appellant. Taking the prosecution’s case as true, it is impossible to accept that the second respondent maintained a physical relationship solely because the appellant made a promise of marriage.

As a result, the impugned judgement and order, as well as the charge sheet filed on the basis of the same, are quashed and set aside, and all future proceedings in the case are quashed.


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Written by – Surya Venkata Sujith


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